Jeffrey D. Hoagland (New Mexico Court of Appeals) & Vinay Harpalani (University of New Mexico – School of Law) have posted Original Intent, Racial Equality, and the Conundrums of Colorblindness (Maryland Law Review, Vol. 83, Forthcoming 2023) on SSRN. Here is the abstract:
American constitutional and political discourse on race has long tied together originalism and social equality, intertwined with notions of federalism. In the recent affirmative action cases, Students for Fair Admissions (SFFA) v. Harvard and SFFA v. University of North Carolina at Chapel Hill, both parties have advanced originalist arguments and appealed to notions of social equality. This interplay is not new and actually predates the Fourteenth Amendment itself. We see it echoed in the rhetoric of the Lincoln Douglas Debates, one hundred sixty-five years ago. Here, Lincoln and Douglas both appealed to the original intent of the Founders and made claims about social and political equality of Black and White Americans, approaching these issues from different perspectives and linking them to competing visions of federalism. The affirmative action cases have similarly presented different views of original intent and equality, centered on the both the constitutionality and the fairness of government racial classifications. Taken together, the affirmative action cases and the Lincoln Douglas Debates demonstrate the uniquely American rhetorics that continue to dominate contemporary social and political debates on race.